Courts do interpret what rights are, that's their purpose. But you can't have a right that's created that didn't exist and no one ever voted on. There are many gray areas where such a thing is not possible to determine (e.g how the bill of rights ought to be applied to speech on TV, radio, internet), and it is of course the purpose of the court to make that determination.

It is not their responsibility, and in fact it is explicitly not their job to decide if X or Y is 'best for the country'. That's the purpose of a legislator and the voters. In fact, a good judge will decide many things that he thinks are wrong because the law says so, even if he disagrees. Otherwise, why even have judges? Just make Congress the final arbiter of what's legal or not. I believe in the UK it's like that (correct me if I am wrong) - no act of Parliament can be overturned by the courts. If you wish to have that system - fine. I disagree with it, but I can understand it. But I prefer having a constitution which places limits on the legislatures and the courts from doing anything they want (at least without a huge effort that's required in passing an amendment).

In the UK courts can set a precedence (I think). But Fred or Zaremba would be the ones to ask.

I think some people are missing his point a little, particularly as he didn't express himself very well in his first few posts on the matter.

Particularly because his issue in the first place was what was basically (in lay language) a disclaimer or carve-out in the ECHR. That is a totally different issue to constitutional interpretation. That is an issue with drafting in the first place, which leaves a national security carve-out, or a public safety carve-out etc.

"I am very happy and it will allow me to have lot more rice."

Eoin Morgan on being given a rice cooker for being Man of the Match in a Dhaka Premier Division game.

Is very little margin of appreciation left for carve-outs in the name of national security or public security tbh. Seems far easier to restrict expression which is either artistic or religious in nature rather than political.

Particularly because his issue in the first place was what was basically (in lay language) a disclaimer or carve-out in the ECHR. That is a totally different issue to constitutional interpretation. That is an issue with drafting in the first place, which leaves a national security carve-out, or a public safety carve-out etc.

Yea I have no problems with legislatures carving out exceptions - there's always a limit and it's appropriate for the legislature to define those limits. My problem was carving out exceptions whose language was so broad that it undermined the right itself. That's why I asked whether phrases like "public morality" were more rigorously defined somewhere in order to make it clear.

That's why I used the example of the soviet union. Their constitution had more rights but it had an exception for "crisis" which was never defined. So the government just delcared a permanant crisis and thus basically voided the constitution. I am clearly not comparing the EU to the soviet union but I was simply raising the point as to how such a broad exception might render the right meaningless - or at least cause it to be severely curtailed despite its "spirit" clearly calling for people to have freedom to worship as they wish.

For example, without that exception, if I were on the court, I would rule the France law banning the burka illegal. Now - as a judge, can I dismiss a hypothetical argument by a country that they want to ban churches, mosques and the printing of bibles and qu'rans because they are a secular country and religion is maybe sexist or homophobic ad thus undermines their public morality? Maybe the society has "evolved" so that 90% of the public is atheist and Christians, Muslims, and Jews are mistrusted minority. And the majority claims it will harm the public health if we allow male circumcision and allow parents to teach non scientific principles to children. I am using atheist because I think many of us are but the same arguments were used against the Jews by Christians not too long ago.

I might be able to reason that and say it, if I had some documentation on what is meant by "public morality", which is what I was asking for.

Again, I have no problem if the plain meaning of that phrase is clear and legally binding. That's why I asked for it.

Last edited by silentstriker; 21-03-2012 at 09:46 PM.

Originally Posted by KungFu_Kallis

Peter Siddle top scores in both innings....... Matthew Wade gets out twice in one ball

Sorry, took me a while to get a hold of this. I won't quote the whole thing, but various Directives state that what is meant by the public morals heading is: "that member states shall take appropriate measures...to restrict acts...which might seriously impair the physical or mental development of minors...particularly acts that involve pornography or excessive violence".

It's also made clear that "any act that prejudices respect for human dignity" will also fall under this category.

Particularly because his issue in the first place was what was basically (in lay language) a disclaimer or carve-out in the ECHR. That is a totally different issue to constitutional interpretation. That is an issue with drafting in the first place, which leaves a national security carve-out, or a public safety carve-out etc.

Originally Posted by sledger

Is very little margin of appreciation left for carve-outs in the name of national security or public security tbh. Seems far easier to restrict expression which is either artistic or religious in nature rather than political.

Sorry, took me a while to get a hold of this. I won't quote the whole thing, but various Directives state that what is meant by the public morals heading is: "that member states shall take appropriate measures...to restrict acts...which might seriously impair the physical or mental development of minors...particularly acts that involve pornography or excessive violence".

It's also made clear that "any act that prejudices respect for human dignity" will also fall under this category.

So if member states think that Quran/Bible lessons impair the mental development of minors, they can ban them.

But I'm sure even those are more tightly defined. And of course you'd have such a problem with any law. As long as there is a clear understanding of what it prohibits or not at the time it was adopted, it makes sense. Someone like Scalia would clearly say that at the time such a convention was adopted, people didn't vote for it to mean that you should ban Christianity or Islam, and thus such a ban would be illegal.

Well yeah Tendy is probably better than Bradman, but Bradman was 70 years ago, if he grew up in the modern era he'd still easily be the best. Though he wasn't, can understand the argument for Tendy even though I don't agree.